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McIntyre v. Great Nothern Paper

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 6 
Docket:	WCB-98-453
Argued:	September 7, 1999
Decided:	January 12, 2000	

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.



RICHARD MCINTYRE v. GREAT NORTHERN PAPER, INC.


CLIFFORD, J.

	[¶1]  The employee, Richard McIntyre, appeals from a 1998 decision
of the Workers' Compensation Board denying, in part, his petition for review
of incapacity, and ordering the continuation of the payment to him of 25%
partial incapacity benefits.  In a 1992 decree, the former Workers'
Compensation Commission awarded 25% partial incapacity benefits to
McIntyre, based, in part, on McIntyre's failure to conduct a good faith work
search, and to show that work was unavailable to him as a result of his injury. 
In the 1998 decree, from which this appeal is taken, the Board concluded
that, although McIntyre has shown that he has received vocational training,
conducted a good faith work search, and has obtained employment since the
previous decree, these showings did not constitute a "change of
circumstances" sufficient to support an award of benefits reflecting a higher
partial incapacity.  We agree with McIntyre that the findings made by the
Board, based on evidence he presented to the Board, constitute a change of
circumstances entitling McIntyre to be considered for benefits reflecting an
incapacity in excess of 25%.  Accordingly, we vacate the Board's decision.
	[¶2]  McIntyre suffered work-related injuries to his left ankle in
August of 1989, while employed by Great Northern Paper, Inc.  He
terminated employment with Great Northern in 1991 and Great Northern
filed a petition for review shortly thereafter seeking to reduce benefits from
total incapacity to partial incapacity.  In 1992, the former Commission
concluded that McIntyre had not met his burden of production to show
entitlement to total or 100% partial benefits, either by performing a good
faith work search or by providing labor market evidence, and, accordingly,
reduced his benefits to reflect 25% partial incapacity. 
	[¶3]  In 1994 McIntyre attended Eastern Maine Technical College and
received a two year degree in business management.  In late 1995 McIntyre
began suffering increased ankle pain, and underwent surgery in July of
1996.  McIntyre was released to work in January of 1997, and began looking
for light-duty work that month.  McIntyre's physical condition improved
until he eventually returned to his pre-surgery level of incapacity on
May 1, 1997.  In July of 1997 McIntyre obtained part-time work as a grocery
inventory auditor and as a direct care worker for mentally and physically
handicapped adults for Common Sense Housing.  In August of 1997,
McIntyre obtained part-time seasonal employment as a highway flagger for
five weeks.  Since January of 1998, McIntyre has been employed full-time
through Common Sense Housing, at a rate of $6.00 an hour, with occasional
overtime.  The record reflects that McIntyre has continued to look for
higher paying employment throughout this period.
	[¶4]  McIntyre filed a petition for review of incapacity seeking
increased benefits from July of 1996.  The Board granted the petition in
part, awarding total incapacity benefits for the period of time that McIntyre
was incapacitated as a result of his surgery, and 50% partial incapacity for
the period after McIntyre began his work search in January of 1997 until he
had recovered his pre-surgery level of capacity in July of 1997.  The Board
concluded, however, that McIntyre had not shown a change of
circumstances since the 1992 decree to justify an increase of benefits after
he returned to his pre-surgery level of incapacity, and ordered continuation
of 25% partial incapacity benefits  The Board stated:
	Unlike the first time in front of the Commission, on this
occasion the employee has done a fairly impressive work search
and if the Board were free to do so, it would hold that the
employee has a 60% fixed rate incapacity level.  However, the
Board is not free to do that.  The burden is on the employee to
show that there has been a change in circumstances since the
[Commission] last addressed the issue [of] his level of incapacity. 
Although this is the employee's first PETITION FOR REVIEW OF
INCAPACITY, he still has to show that there has been a change
since the last time the [Commission] has considered the matter,
this only makes common sense.  What he does not have to show
is comparative medical evidence of a change of circumstances. 
Folsom v. New England [Tel. & Tel. Co.], 606 A.2d 1035 (Me.
1992); See also Hafford v. Kelly, 421 A.2d 51 (Me. 1980).

	In this particular case the employee [] has shown a change
of circumstances for the better since the 1992 decree.  He has
become more educated with a higher level of training and the
economic situation in Penobscot County and in particular,
Bangor, [where] he has looked for work is better now than it was
in 1992.  With the exception of the period of time the employee
was recovering from his surgery, for which he is entitled to total
and partial incapacity benefits, there is no change of
circumstances that would justify the Board increasing the
employee's level of incapacity.  This is not to say that this
Hearing Officer would have found the same level of incapacity
had he been deciding the case back in 1992.  However, as
pointed out by counsel for the employer, that has become res
judicata.  See Cesare v. Great Northern Paper [Co.], [1997 ME
170], 697 A.2d 1235 [].  While it is true that the employee made
a more diligent work search in 1997, that is not the change of
circumstances envisioned by the law. . . .   (Emphasis added.)
We granted McIntyre's petition for appellate review pursuant to
39-A M.R.S.A. § 322 (Supp. 1998).	
	[¶5]  The "changed circumstances" rule is related to the doctrine of
res judicata.  See Folsom v. New England Tel. & Tel. Co., 606 A.2d 1035,
1038 (Me. 1992).  The purpose of the rule is "to prevent the use of one set
of facts to reach different conclusions."  Id.  Consequently, in order to
prevail on a subsequent petition for review, the party petitioning must show
a change of circumstances from the previous decree sufficient to justify a
different result.  Id.  
	[¶6]  In order to determine whether "changed circumstances" exist,
it is necessary to determine the basis on which the previous award has been
made.  See Folsom, 606 A.2d at 1037-38; Haney v. Lane Constr. Corp.,
422 A.2d 1292, 1295-96 (Me. 1980).  A partially incapacitated employee
may be entitled to 100% partial incapacity benefits based on the
unavailability of work within the employee's restrictions.  We have stated
what the burdens of proof are:
On an employer's petition for review, the employer bears the
burden of proof to establish the employee's earning capacity;
however, when the employer shows that the employee has
regained partial work-capacity, the employee bears a burden of
production to show that work is unavailable to him or her as a
result of the injury.  Ibbitson v. Sheridan Corp., 422 A.2d 1005,
1009 (Me. 1980).  If the employee meets the burden of
production, the employer's "never shifting" burden of proof may
require it to show that it is more probable than not that there is
available work within the employee's physical ability.  Id. at
1009-10; Poitras v. R. E. Glidden Body Shop, 430 A.2d 1113,
1118 (Me. 1981).
Dumond v. Aroostook Van Lines, 670 A.2d 939, 941-42 (Me. 1996) (footnote
omitted).  
	[¶7]  The former Commission's finding of 25% partial incapacity in
the previous decree was based, in substantial part, on the employee's lack of
a good faith work search and failure to show the unavailability of
employment.  In this case, McIntyre has presented evidence relevant to his
earning capacity in the current labor market.  His subsequent vocational
training, good faith work search, and his attainment of post-injury
employment taken together constitutes a significant change in
circumstances relating to the extent of his incapacity.  Indeed, based on this
new evidence, the Board found McIntyre's level of incapacity to be 60%. 
Moreover, this is not a case where the employee merely undertook the
necessary work search, or endeavored to gather information about the
availability of employment, after a negative finding.  McIntyre has
substantially changed his circumstances by seeking out and completing
vocational education, by engaging in a search for employment, and by
committing himself to that new employment.  If the Board's interpretation
stood, and employees were forever barred from obtaining an increase in
benefits after making earnest efforts to reenter the work force and actually
obtaining employment as McIntyre has done here, the purpose of the Act to
encourage employees to look for post-injury employment would not be
served.
	[¶8]  The Board erred in finding that McIntyre had not shown
sufficient changed circumstances since the 1992 decree.  For the period
following his attainment of employment in July of 1997, McIntyre's
post-injury earnings constitute prima facia evidence of his earning capacity. 
See Fecteau v. Rich Vale Constr., Inc., 349 A.2d 162, 166 (Me. 1975). 
Although the Board found a 50% partial incapacity for the period after
January 1997 but prior to his attainment of employment in July of 1997, the
Board's finding that McIntyre "has done a fairly impressive work search,"
suggests that the Board may have failed to consider McIntyre's entitlement
to total or 100% partial benefits during this period.  See Ibbitson v. Sheridan
Corp., 422 A.2d 1005, 1009 (Me. 1980).  Accordingly, we vacate the
decision and remand to the Board for a determination of incapacity from
January of 1997 to the present and continuing.
	The entry is:
The decision of the Workers' Compensation
Board is vacated.  Remanded to the Workers'
Compensation Board for further proceedings
consistent with the opinion herein.

Attorney for employee: Wayne W. Whitney, Esq., (orally) McTeague, Higbee, MacAdam, Case, Cohen & Whitney, P.A. P O Box 5000 Topsham, ME 04086-5000 Attorney for employer: John A. Woodcock Jr., Esq., (orally) Weatherbee, Woodcock, Burlock & Woodcock, P.A. P O Box 1127 Bangor, ME 04402-1127